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IP Snapshot – May & June by Tom Carver

Every case is interesting to someone and no case is interesting to everyone, and so we provide snapshots of each intellectual property decision reported by bailii.org (British and Irish Legal Information Institute) from the Patents Court (which deals with all registered rights), the Intellectual Property Enterprise Court (for smaller or simpler claims), and the appeal courts, and a contents table so that you can see quickly whether there is anything interesting to you.

Iconix Luxembourg Holdings SARL v Dream Pairs Europe Inc & Anor

In a somewhat unusual decision, the Supreme Court held that the Court of Appeal had been correct on the law (see our Snapshot here) but had erred in finding that the first instance judge’s assessment of very faint similarity between the Sign and the Mark from certain angles was irrational.

This is a reminder that it is very difficult to overturn, on appeal, the judge’s answer to the multi-factorial questions facing the court at first instance. The first instance judge in all cases witnesses the oral evidence and argument at first hand and is best placed to decide questions such as the degree of similarity in trade mark cases, or the question of inventive step in a patent case. The appeal court must find that no reasonable judge could have reached the same conclusion, and this is a high bar to pass.

Samsung Bioepis UK Ltd v Alexion Pharmaceuticals Inc

The patent was found to be obvious in light of an article published by the patentee. There was no great dispute on the law, but a convoluted history for the patent involving an error in the original CAS submission for the antibody in suit, a different error in one of the characterising sequences in the patent and the loss of a priority date for the patent.

Construction of the claim was important, with the patentee arguing, broadly, that the error in the characterising sequence would be understood to be wrong and would be ignored by the skilled addressee when purposively construing the claim, while the defendants argued, inter alia, that such a clear claim must be construed literally.  The judge, noting that the characterising sequence data “is scientific language that would generally be expected to be precise” and that “drafting convention [is] that “consisting of” specifies exactly what must be present”, concluded that the defendants were right about claim construction, on which basis the patentee accepted that the patent should be revoked.

The judge also found the patent to be obvious over one of the cited prior art references in combination with two further documents. Multiple prior art documents generally cannot be read together but in this case all three documents were produced by the patentee and the judge found that the skilled addressee would have been motivated to produce the antibody disclosed by the cited prior art and would have used the secondary documents for disclosures of the hybrid constant region and the humanised variable region, respectively. The details of the mosaicking are complex and beyond the scope of this note, but the mere fact that I have to write that would suggest that the mosaic is not a straightforward one and susceptible to challenge.

Astrazeneca AB & Anor v Glenmark Pharmaceuticals Europe Ltd

In this further round of litigation between these parties, the patent and SPC having been found to be invalid (see here) and the initial interim injunction (see here) having fallen away at the date of the form of order hearing, the patentee applied for an interim injunction pending the hearing of its appeal on the invalidity decision.

The judge found that each side, for the usual reasons of downward price spiral (patentee) and prospect of error in calculating the damage on the cross-undertaking (defendant), was likely to suffer irreparable harm on the alternative hypotheses of the injunction being granted or not and therefore decided to maintain the status quo by granting grant the interim injunction.

DSM IP Assets BV & Anor v Algal Omega 3 Ltd &Anor

This is the judgment from the hearing to decide the form of order, following the judgment on the claim reported in our March snapshot.

The claimants were refused permission to appeal for expanded Island Records disclosure and granted permission to apply for a dissemination order.

As to costs, both sides asserted that they were the overall winner. The defendant asserted so on the basis that it had succeeded in relation to two of the three patents in issue, those two being the two in force which could have been used for injunctive relief; the claimant asserted so on the basis that the defendant would nonetheless have to write it a very substantial cheque for damages in relation to the third patent and generally the party writing the cheque is deemed to be the overall loser.

The judge decided that the size of the cheque to be written was not relevant to the question of who the overall winner was, and that he should decide the overall winner on the issues raised in the litigation rather than what might happen in the future. On that basis it was clear that the defendant was the overall winner.  The costs were then calculated in the usual way based on the particular issues each party had succeeded or failed on.

Samsung Electronics Co Ltd & Anor v ZTE Corporation & Ors

The judge agreed with the claimant that the defendant had acted in bad faith in the SEP negotiations by initiating a wave of unnecessary injunctive proceedings and by using the threat imposed by those proceedings to seek to sideline or displace the jurisdiction of the High Court in favour of proceedings in Chongqing.

He agreed to grant a declaration that a willing licensor and licensee in the position of the parties would enter into an interim licence in respect of each others SEP, subject to adjustment and amendment upon final determination of the global FRAND terms by the High Court.

Leeds Plywood & Doors Ltd v Deanta UK Ltd

The application to strike out parts of evidence largely succeeded because the paragraphs were commentary of the sort that should be in submissions and were not properly evidence as to the facts.

The application for specific disclosure failed because the request was too broad, too close to trial and too likely to lead to arguments about proportionality and the form of order.